Retiring justice says Canada’s courts need more diversity: ‘not everything is working perfectly’

Nova Scotia's Chief Justice Michael MacDonald stands in his office during his last days on the job in Halifax on Wednesday, Jan. 30, 2019. THE CANADIAN PRESS/Andrew Vaughan

HALIFAX – After a career championing social justice issues, Nova Scotia’s chief justice is retiring Thursday with a challenge to judges across Canada: Do more outreach with marginalized communities.

Chief Justice Michael MacDonald conceded the judiciary has traditionally been “pretty insular,” and said he felt a responsibility to “be part of the solution instead of part of the problem.”

In an exit interview with The Canadian Press, he said courts need to better understand the communities they serve.

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“It’s really all about education. It’s about humility, I think, as well … Because of course I have the worldview of a white male down pat, but I don’t have the worldview of those who have come from marginalized communities and who have had challenges that I’ve never had,” said MacDonald.

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“I think we as an institution must be humble enough to recognize that not everything is working perfectly and we would all benefit and be a richer judiciary and richer as judges if we learn more about the society within which we judge. It’s really as simple as that.”

MacDonald, 64, became the 22nd chief justice of Nova Scotia and the chief justice of the Nova Scotia Court of Appeal in 2004.

He’s spent much of his 40-year legal career presiding over court cases and encouraging his colleagues to engage and learn from marginalized communities.

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Last June, MacDonald worked with leaders in the Indigenous and African Nova Scotian communities to host a two-day meeting at the Black Cultural Centre in Cherry Brook, N.S., where 40 judges heard firsthand about the unique challenges facing those communities.

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At the end of that meeting, MacDonald committed to institutionalizing this type of judicial outreach, ultimately leading to the creation of the African Nova Scotian Access to Justice Judicial Committee.

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He also initiated a 2016 review of diversity on the bench that led to the development of a mentorship program for African Nova Scotian and Indigenous lawyers.

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“It’s easy for the judiciary to say, well, it’s not our problem. It’s society’s problem. Well, it’s all of our problems and I’m gravely concerned when I learn about statistics where there is significant overrepresentation of black and Indigenous people in our prisons, when victims of sexual assault are seriously under-reporting,” he said, sitting at his desk in a now mostly bare office overlooking a rainy Halifax Harbour.

“Public confidence in the judiciary is fundamental and therefore anything we can do that can enhance public confidence in the judiciary would be important.”

MacDonald said judges stand to gain new perspectives by engaging with marginalized communities.

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“I think the real end game is, and the goal is, to just learn as much as you can about other people’s experiences, and that will make you a richer judge and actually make you completely impartial in the sense that when I hear your story, I can understand it better,” he said.

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He believes the types of institutionalized outreach initiatives happening in Nova Scotia are unique to the province, but the ideas behind it can be applied elsewhere.

MacDonald added that this work requires a balance to be struck between community engagement and maintaining judicial independence.

For example, in the lead-up to the Cherry Brook meeting, legally trained community leaders held preliminary meetings to explain to the community the judiciary’s independence and about how judges cannot align with certain causes or comment on specific cases.

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“I’m told that like all education, it’s a two-way dynamic in the sense that we’ve learned a lot – I’ve learned a lot – but to the members of the community, not only appreciating the fact that we’ve engaged the community, they have, I think, a better understanding for the judiciary and the role that we play,” said MacDonald.

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The federal government has not yet named the province’s next chief justice.

MacDonald said he plans on spending his retirement with his family, including his wife Brenda, his three daughters – Christina, Laura and Bhreagh – and his two granddaughters, Cate and Caroline.

Although he officially retires on Thursday, MacDonald is heading to his home community of Whitney Pier, N.S., on Friday for an engagement session of the African Nova Scotian Access to Justice Judicial Committee.

“The vision would be that with enough engagement and understanding, our decisions will be better appreciated, better understood, and everybody wins.”

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